Unit 3
MARRIAGE
Aim of the Unit
The aim of this unit is to expose you to the laws of marriage that apply in Zambia, and
the modifications that have been or may be made to the English Law that applies to
Zambia to suit local conditions. The unit will give an expose of both civil and customary
marriages, and the structures that administer them. At the end of this unit, you should be
able to advise a client on the advantages and disadvantages of each type of marriage, so
that they may make reasoned decisions.
Topic 1: Introduction
The basis of the family in Zambia, as elsewhere, is marriage. Marriage, therefore, forms
a very important institution as every family, the smallest unit of society, is founded on it.
Parties may marry under civil law and be governed by the Marriage Act Chapter 50 of the
Laws of Zambia and other written laws, common law and rules of equity, or they may
choose to marry under customary law that applies to them, or in the case of inter-ethnic
marriages, a customary law of one of the parties to the marriage. Before independence,
Africans did not qualify to contract marriages under statute (the Marriage Ordinance).
They applied their customary laws to marriages and related personal relationships. They
could not marry under the Act (Ordinance) even if they wanted, until the law was
amended in 1963 making it applicable to all who chose to be affected by it. In practice
although the people of Zambia largely marry under customary law, the vast majority of
those who choose civil m
arriages also combine with processes required for contracting a valid customary marriage,
such as engaging into marriage negotiations through families and a Shibukombe or
Nkhoswe; they depend very much on the consent of parents, without which there can be
no marriage. They practice the payment of lobola by the groom’s family to validate the
marriage and have the right to children of the marriage. A statutory marriage is a union
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of the two parties to the marriage, but in the Zambian context their families are very
much part of the alliance. Parties’ families usually observe the statutory solemnization
ceremony as well as the traditional ceremony of a feast and rites of handing over the
bride to the groom’s family. The two laws are blended without one disrupting the other.
The Marriage Act recognizes customary marriages which are valid under the customary
laws of the parties. Customary marriages are potentially polygynous and include
essential elements such as consent of the parents (which counts more than that of the
parties to the intended marriage), payment of lobola and other marriage payments1. It is
in this respect, of polygyny, that conflict is usually experienced and the wide publicity
given to the case of The People v Chitam
bala (1969) ZR 142 caused a drop in the number of Africans who contracted civil
marriages between 1969 and 1974.2
Topic 2: Civil Law Marriage
Definition of Marriage
The Marriage Act Cap 50 of the Laws of Zambia does not define the term marriage. The
traditional English definition applied by Zambian Courts is that given by Lord Penzance
in Hyde v Hyde and Woodmansee (1866).
Hyde v Hyde and Woodmansee (1866) LR1 P & D 130
(Court of Divorce and Matrimonial Causes)
LORD PENZANCE… Marriage has been well said to be something more than a contract, either
religious or civil – to be an Institution. It creates mutual rights and obligations, as all contracts do,
but beyond that it confers a status. The position or status of ‘husband’ and ‘wife’ is a
recognized one throughout Christendom: the laws of all Christian nations throw about that
status a variety of legal incidents during the lives of the parties, and induce definite
rights upon their offspring. What, then, is the nature of this institution as understood in
Christendom? Its incidents vary in different countries, but what are its essential elements and
invariable features? If it be of common acceptance and existence, it must needs (however varied
in different countries in its minor incidents) have some pervading identity and universal basis. I
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conceive that marriage, as understood in Christendom, may for this purpose be defined as the
voluntary union for life of one man and one woman, to the exclusion of all others……….
This definition means literally that once married, always married until death parts the
parties. It does not contemplate divorce, nor same sex marriage.2
To the African customary marriage, the ‘flaws’ of this definition are that the union is not
necessarily voluntary nor is it necessarily a union of one man and one woman nor is it
for life, because a marriage may be arranged; the marriage is polygynous in nature; and a
wife may be sent back to her parents to be “taught” or may be returned to her pre-marital
family indicate that she has been divorced.
Even under English statutory law that definition is no longer accurate. Firstly, people can
file for divorce for various reasons contained in the Matrimonial Causes Act 1973 of
England. Secondly, people may marry for convenience, for instance to enable a child to
be born in wedlock in a situation where parties have no intention whatsoever of
remaining married or live together at all. A marriage under statute is still monogamous.
None of the parties may marry another partner during the subsistence of their marriage.
If they do they commit the crime of bigamy, punishable by up to five [5] years
imprisonment4 and also the latter marriage is void ab initio, that is that it is of no legal
effect from the start.
In Janet Mpofu Mwiba v Dickson Mwiba, Chirwa J. held that the basis of marriage in
English law is the Christian marriage, the voluntary union for life of one man and one
woman to the exclusion of all others and the Christian concept is not a religious one but a
monogamous concept of marriage and that courts of matrimonial jurisdiction would
therefore not dissolve or annual marriages unless they are monogamous unions within the
meaning of the English marriage.
The Court held that although the marriage was monogamous, the man was free to take another
wife under the law governing their marriage. The parties were a Zimbabwean man and a
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Zambian woman who had married under the Zimbabwean African Marriages Act, Chapter 105
of, the Laws of Zimbabwe.
In Sowa v Sowa (1991) p68 where the Parties married under Ghana customary law and
the marriage was potentially polygamous, although monogamous at that moment, Lord
Justice Holroyd Pearce held that the man was free to marry another wife, thereby turning
the marriage into a polygamous one.
He said at page 84:
It is argued that for practical convenience the Courts could and should deal
with the marriage which thought potentially polygamous are in fact
monogamous. But the fact that a marriage happens at the moment to
consist of only two formerly single spouses is irrelevant and may be
altered at any time by the husband taking another wife. A husband could
always invalidate a pending summons simply by so doing. Such a
situation would be incongruous and shows the undesirability of seeking to
alter the principle on the ground of convenience in particular cases. The
essential question is what is the nature of the union, and what are the
bonds and implications of the marriage ceremony in question. If the
ceremony is polygamous then it does not come within the word
“marriage” for the purpose of the Acts relating to matrimonial matters, nor
do the parties to it come within the words “wife” “married woman” or
“husband”.
Requirements for a valid Civil Marriage
A marriage under statute may be solemnised by a licenced Church Minister, priest or
pastor in a designated or licensed place or building.
The licences are usually gazetted.
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The Marriage Act specifically provides for this. The church itself or some such other
place of worship must be licenced and gazetted to solemnize marriages.
In some jurisdictions, people may marry on a balloon in the air, or on or under the sea in
a submarine etc. It does not happen in Zambia, but where it happens, the parties apply
for a special licence but must be married by a licenced Minister of Religion or Registrar
of Marriages or as provided by their laws.
Marriages in unlicenced buildings or churches by unauthorized persons do not qualify as
statutory marriages. They may pass as customary marriages if a custom can be identified
as applying to them. Preliminaries to Marriages under the Act include the following:
1. There must be a notice of intention to marry made on the prescribed form to the
Registrar – there is one in every district.
The Notice must be of not less than 21 days (section 6)
2. The Notice must be given by one of the parties to the marriage, and it must be
signed by that person.
If the person cannot write, his or her mark, e.g. a cross of thumb print shall be placed on
the prescribed form, and attested to by a person who can read and write, that is, by literate
person.
Sections 6 – 21 of the Marriage Act read in part as follows:-
Notice of 6. No marriage shall be solemnised unless notice of the intended
intended marriage shall have been given in the prescribed form by one of the
marriage parties thereto to the Registrar of the district in which the marriage is intended to
take place not less than twenty-one days before the date of solemnisation.
Issue of 10. (1) The Registrar, at any time after the expiration of twenty – one
certificate days and before the expiration of three months from the date of the
notice, upon payment of the prescribed fee, shall issue his
certificate in the prescribed form:
provided always that he shall not issue such certificate until he has been satisfied
by affidavit –
(i) that one of the parties has been resident within the district in which the
marriage is intended to be solemnized for at least fifteen days
immediately preceding the granting of the certificate
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(ii) that each of the parties to the intended marriage (not being a widower
or widow) is not less than twenty-one years old or that is he or she is
under that age the consent hereinafter made requisite has been
obtained (which consent must be in writing and annexed to such
affidavit); (emphasis added)
(iii) that there is not any impediment of kindred or affinity or any other
lawful hindrance to the marriage; (emphasis added)
(iv) that neither of the parties to the intended marriage is married by
African customary law to any person other than the person with whom
such marriage is proposed to be contracted. (emphasis added)
(2) Such affidavit may be sworn before the Registrar.
(3) The Registrar taking such affidavit shall explain to the person making
the same what are the prohibited degrees of kindred and affinity and the
penalties which may be incurred under the provisions of the Act. (emphasis
added)
(As amended by No. 48 of 1963)
Marriage to 11. If the marriage shall not take place within three months after the
take place date of the notice, the notice and all proceedings consequent thereupon
within three shall be void: and further notice must be given in accordance with section
months of date six before the parties can lawfully marry.
of notice
issue of 12. (1) The Minister or an authorized officer, upon proof being made to
special licence him by affidavit that there is no lawful impediment to a proposed
marriage and that any necessary consent to such marriage has been obtained,
may, if he shall think fit, dispense with the giving of notice and with the issue of
the certificate of the Registrar and may, upon payment of the prescribed fee,
grant a special licence in the prescribed form authorizing the solemnization of a
marriage between the parties named in the special licence by a Registrar or by a
licensed minister of some religious denomination or body and may further, if he
shall think fit, authorize the solemnization of a marriage at a place named in the
special licence, not being a licensed place of worship or Registrar’s office.
(2) In this section -
“authorized officer” means a public officer designated by the Minister as an
authorized officer.
(As amended by No. 11 of 1937, G.N. No. 316 of 1964
and No. 21 of 1969)
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Part II of the Marriage Act provides for consent to marriage in certain cases
When consent 17. If either party to an intended marriage, not being a widower or
to marriage widow, is under twenty-one years of age, the written consent of the father,
is necessary or if he be dead or of unsound mind or absent from Zambia, of the
mother, or if both be dead or of unsound mind or absent from Zambia, of the
guardian of such party shall be produced and shall be annexed to the affidavit
required under sections ten and twelve and, save as is otherwise provided in
section nineteen, no special licence shall be granted or certificate issued
without the production of such consent.
Signature to 18. (1) If the person required to sign such consent is unable to
consent and write, he shall sign such consent by placing his cross or mark
Attestation thereto in the presence of one of the following persons: any Judge,
District Secretary, Registrar of the High Court, Registrar of Deeds,
Government Medical Officer, or minister of religion.
Consent in 19. (1) If any parent or guardian, whose consent to a marriage is required,
case of refusal refuses his consent, a Judge of the High Court may, on application being
or absence made, consent to the marriage, and the consent of the Judge so given shall
of parent or have the same effect as if it had been given by the person whose consent is
guardian refused.
(2) If there be no parent or guardian of such party residing in Zambia and
capable of consenting to the marriage, then any of the following persons, that is
to say, the Minister, a Judge of the High Court, or a District Secretary may
consent to such marriage in writing, upon being satisfied after due inquiry that
there are no reasonable grounds in the interest of either party for withholding
such consent, and such consent shall be as effectual for the purposes of this Act
as if the father or mother had consented.
(As amended by No. 35 of 1947 and G.N. No. 316 of 1964)
Solemnisation of marriage is provided for in Part IV of the Marriage Act.
Solemnisation 20. Marriages may be solemnised in any licensed place of worship
of marriage by any licensed minister of the church, denomination or body to
by ministers which such place of worship belongs and according to the rites and usages of
marriage observed in such church, denomination or body, or with the consent of
a recognised minister of the church, denomination or body to which such place
of worship belongs by any licensed minister of any other church, denomination
or body according to the rites and usages of marriage observed in any church,
denomination or body. Every such marriage shall be solemnised with open
doors between the hours of six o'clock in the forenoon and six o'clock in the
afternoon, and in the presence of two or more witnesses besides the officiating
minister.
(No. 11 of 1937 as amended by No. 48 of 1953)
Registrar's 21. A minister shall not solemnise any marriage if he knows of any just
certificate or impediment to such marriage nor until the parties deliver to him the
special licence Registrar's certificate or the special licence, as the case may be.
to be
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provided to minister (As amended by G.N. No. 316
of 1964)
Marriage in 22. A minister shall not solemnise any marriage except in a building
licensed which has been duly licensed by the Minister or in such place as the
building special licence may direct.
(As amended by G.N. No. 316 of 1964)
Issue of 27. The Registrar shall then fill up and he and the
parties and witnesses
marriage shall sign the certificate of the marriage in
duplicate and the Registrar
certificate shall then fill up and sign the counterfoil as
hereinbefore provided in the
by Registrar case of a marriage by a minister and shall deliver one
certificate to the
parties and shall, within seven days, transmit the other to
the Registrar-general.
In R V Chinjamba NRLR Vol V, 384A villager, Fulai Njamba, married a girl under the
age of sixteen years and lived with her as man and wife. The accused who was the
village headman, knew of these facts and took no steps to prevent or report the matter.
He was charged with being an accessory after the fact to unlawful carnal knowledge of a
girl under the age of sixteen years, and convicted pursuant to section 119(1) of the Penal
Code. The matter was called for review by the High Court, before Hon. Justice
Woodman.
On review, it was held that
“it is not unlawful for a man to have carnal knowledge of a girl to
whom he is lawfully married, despite the fact that the girl is under
sixteen years of age”
Woodman J.: In this case the accused was found guilty on his own plea of being
an accessory after the fact to [to] unlawful carnal knowledge of a girl under the
age of sixteen years contrary to Penal Code section 119(1) read with section 359.
The accused’s answer to the charge was –
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“I admit I am a headman. I know I have a duty to prevent or
report crime, I admit that I knew that Fulai Njamba had married a
girl under sixteen years of age at my village and was having carnal
knowledge of her and I did nothing to intervene or report to any
authority this fact.”
This did not amount to a plea of guilty if at the time when the carnal knowledge
took place there was a valid marriage subsisting between Fulai Njamba and the
girl in question according to native customary law.
The carnal knowledge must be unlawful and it is not unlawful for a man to have
carnal knowledge of a girl to whom he is lawfully married.
2.2 Common Law Marriage
A common law marriage arose from an extra marital relationship between a man and
woman living together as husband and wife. The parties did not marry under the rules of
common law, and the relationship did not get judicial recognition.6 Today a common law
marriage is one where two people from different jurisdictions celebrate their marriage
according to the law of the place of marriage (lex loci celebrationis) where formal
requirements for a valid marriage according to English law are not fulfilled, for instance
celebrating a marriage without a priest or a person with holy orders.7 Zambia derives her
civil law of marriage from British law, and does not recognise a common law marriage.
English law has however reconsidered the conflict of laws and recognizes such marriages
as an exception if the circumstances are sufficient though to be sufficient to cure
invalidity. 8
The exceptions include are inter alia9
a) where there is the absence altogether of a local form for celebrating marriages
in the Country where the marriage is celebrated.
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b) Where it is impossible or unreasonable to expect the parties to comply with
the lex loci celebrationis, for example where the existing ceremony in the lex
loci is offensive by English standards
c) Where the country where the marriage is celebrated is under military
occupation and the parties to the marriage are members of the occupying
forces who cannot be expected to comply with the law of the occupation
country.
It is therefore logical to argue that the High Court of Zambia, in the case of Somanje v
Somanje. 1972 ZR 301 misdirected itself on a point of law when it decided that two
Zambians had contracted a common law marriage when they had the choice to marry
civil or customary law.
Topic 3: Marriage under Customary Law
Under customary law there is no specific age for marriage. A girl is considered capable o
marrying at puberty, although some ethnic groups allow a longer period for a girl to be
more mature. Generally, a boy is considered ready for marriage once he grows a beard
and shows ability to do work that can support a wife, children and other members of the
family. In the traditional setting a family includes brothers, sisters, cousins, parents,
uncles and all near relatives of the parties to the marriage. The parents, aunts and uncles
play an important role in the marriage process, including consenting to the parties
marriage, without which no marriage may take place.
Such parental consent is considered important particularly because a girl is of tender age
and without the experience that would enable her understand the nature of marriage.
Parents (a term used to include aunts, uncles grandparents, etc) therefore usually arrange
marriages with families they hold in trust, consider of good character and morals, and
with sufficient resources to provide for their daughter and that the man can be a good
husband. The practice also ensures that marriage does not take place within prohibited
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degrees of marriage10, or if permitted, necessary payments are made to make it possible
for near relatives, particularly cousins, to marry.
Marriage payments are an essential aspect of a valid marriage. Acceptance of the
payments by the girl or woman’s parents signifies their consent. The marriage payments
are many and vary from one ethnic group to another. The payments are also important
because they signify a marriage relationship between the bride and the groom’s families
and mutual respect for each other.
Topic 4: Offences and Penalties
What is the penalty for contracting a marriage contrary to the Act? The answer is
contained in Part VII of the Marriage Act, Cap 50 as shown below.
By Section 38. any person who-
(a) contracts a marriage under this Act, being at the time married
in accordance with African customary law to any person other
than the person with whom such marriage is contracted;
(b) having contracted a marriage under this Act, during the
continuance of such marriage contracts a marriage in
accordance with African customary law; shall be guilty of an offence and liable on
conviction to imprisonment for a period not exceeding five years:
Provided that this section shall not extend to any person who contracts a marriage
during the life of a former husband or wife, if such husband or wife, at the time of
the subsequent marriage, shall have been continually absent from such person for
the space of seven years, and shall not have been heard of by such person as being
alive within that time.
(No. 48 of 1963)
Exempted by this provision is a spouse who marries another person under a presumption
of death. If the spouse is alive but has not been heard of or seen for seven (7) years by
people who ought to see or hear of him, there is a presumption of death and therefore
such person (who contracts another marriage) may not be penalized.
A person who makes false declaration as to his / her status (that he / she is not already
married to someone else) is, upon conviction, liable to five (5) years imprisonment.
Whoever helps him conceal his/her true status is also liable to the same penalty, as
provided in Sections 40 – 45 of the Marriage Act.
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40. Whoever in any affidavit, declaration, licence, document or
statement by law, to be made or issued for the purposes of a
marriage, swears, declares, enters, certifies or states any material matter which is
false shall, if he does so without having taken reasonable means to ascertain the
truth or falsity of such matter, be liable on conviction to imprisonment with or
without hard labour for one year or shall, if he does so knowing that such matter
is false, be liable on conviction to imprisonment with or without hard labour for
a period not exceeding five years.
41. Whoever endeavours to prevent a marriage by falsely pretending that his
consent thereto is required by law, or that any person whose consent is so
required does not consent, or that there is any legal impediment to the
performing of such marriage, shall, if he does so knowing that such pretence is
false or without having reason to believe that it is true, be liable on conviction to
imprisonment with or without hard labour for a period not exceeding two years.
Even a person who performs the ceremony knowing he is not authorized, is liable to five
(5) years imprisonment with hard labour.
42. Whoever performs the ceremony of marriage knowing that
he is not duly qualified so to do, or that any of the matters required by law for
the validity of such marriage has not happened or been performed, so that the
marriage is void or unlawful on any ground, shall be liable on conviction to
imprisonment with or without hard labour for a period not exceeding five years.
Penalties and offences are provided for in sections 43 – 45 as follows
43. Whoever, being under a duty to fill up the certificate of a marriage
celebrated by him or the counterfoil thereof or to transmit the same to the
Registrar, wilfully fails to perform such duty shall be liable on conviction to a fine
not exceeding one thousand and five hundred penalty units or, alternatively or in
default of payment of such fine or in addition thereto, to imprisonment with or
without hard labour for a period not exceeding two years.
(As amended by Act No. 13 of 1994)
44. Whoever personates any other person in marriage, or marries under a false
name or description with intent to deceive the other party to the marriage, shall
be liable on conviction to imprisonment with or without hard labour for a period
not exceeding five years.
45. Whoever goes through the ceremony of marriage, or any ceremony which
he or she represents to be a ceremony of marriage, knowing that the marriage is
void on any ground and that the other person believes it to be valid, shall be
liable on conviction to imprisonment with or without hard labour for a period
not exceeding five years.
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Questions for Discussion
1. Define marriage and explain the requirements for a valid marriage
2. Distinguish a customary marriage and a civil marriage
3. What are the strengths and weaknesses of :
(a) a civil marriage
(b) a customary marriage
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Support your answers with cases
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